Territorial Disputes in West Philippine Sea: The

Stand of the Philippines

by

Jellane S. Seletaria

MA SocSted
 Abstract
           
Territorial disputes over the West Philippine Sea are an emerging issue in the
Philippines and other ASEAN Members with China. The West Philippine Sea/South
China Sea is the subject of conflicting territorial claims among China, Philippines
and other neighboring countries. While most past confrontations among the
claimants took place in words, recent events indicate that acts are taking center
stage in the West Philippine Sea territorial disputes. This dangerous development
has caused diplomatic rows among claimant countries. Philippines is perhaps the
first to stand test of China’s massive claims in the South China Sea during the
Aquino Administration. Despite a resounding legal victory of the Philippines at the
Permanent Court of Arbitration in The Hague, Chinese encroachment and buildup
has continued. A major uncertainty lies in the level of support of the United States
towards the Philippines, which appears as a small local player within a powerful
rivalry between two superpowers, but tries to gather support from other Asian. There
is a need for the Philippines to fight for the rights in the West Philippine Sea. This
paper discusses complex territorial dispute issues in the West Philippine Sea.

Introduction

National territory is considered to be the most sacred as it defines the sense

of ownership and belongingness of a country and its populace. It is stated on the
1987 Constitution of the Republic of the Philippines- Article 1 that “The national
territory comprises the Philippine archipelago, with all the islands and waters
embraced therein, and all other territories over which the Philippines has sovereignty
or jurisdiction, consisting of its terrestrial, fluvial and aerial domains, including its
territorial sea, the seabed, the subsoil, the insular shelves, and other submarine
areas. The waters around, between, and connecting the islands of the archipelago,
regardless of their breadth and dimensions, form part of the internal waters of the
Philippines”. The West Philippine Sea is the part of the sea on the west side of the
Philippines in which maritime rights of the country extends. It has different maritime
zones, each with special maritime rights exclusive to the Philippines. In the last
several years there have been significant developments in the China–Philippines
South China Sea dispute, which culminated in the institution of arbitral proceedings
by the latter against the former on 22 January 2013

West Philippine Sea is the official designation by the Philippine government of

eastern parts of the South China Sea which are included in the Philippines' exclusive
economic zone. The term is also sometimes incorrectly used to refer to the South
China Sea as a whole. The first use of the term "West Philippine Sea" by the
Philippine national government was as early as 2011, during the administration of
President Benigno Aquino III. The naming was intended for purposes of the national
mapping system and to symbolize disagreement with China's sovereignty claim over
the whole South China Sea [ CITATION Wik \l 1033 ].
Claims Over the West Philippine Sea
The Philippines's main argument is that China's 9-dash line, published map
showing 9 dashes encircling the entire South China Sea, contradicts the United
Nations Convention on the Law of the Sea or the UNCLOS, it important to note that
the UNCLOS was signed by many countries including the Philippines and China (Del
Caller). Under the UNCLOS a country is given 200 nautical miles of sea as an
exclusive economic zone, as well as an additional 150 miles of ECS (Carpio). This
being said the Philippines should have sovereignty over the West Philippine Sea and
its neighboring islands, including Scarborough shoal. (1) China's main argument is that
the entire South China Sea belongs to them with historical maps as their basis.
According to Felix K. Chang's article "Beyond the Unipolar Movement-Beijing's
Reach in the South China Sea,” China's claims over the region is primarily historical
records (Johnson 9). Chinese officials argue that the territory was discovered around
200 AD; using maps as well as artifacts found in the islands to further support
China's claim (Johnson 12). For example, Officials claim that a few islands in the
Roque 3 South China Sea were discovered by the Chinese in the 2nd Century, to
support this they presented maps made in the 3rd and 18th Century AD. (2) As
tensions grow ever higher it is inevitable for countries to start engaging in a political
war. To illustrate, Philippine officials claim that China's 9-dash line claim has no clear
and specific location (Carpio). In addition, Henry Bensurto, the Philippine Consul
General, also argues that China is 800 nautical miles away from the West Philippine
Sea compared to the Philippines' 200 nautical miles (Carpio). Moreover, Philippine
officials also noted that the UNCLOS does not recognize historical maps as
evidence, thus furthering their stand in the tribunal. China on the other hand
continues to stick to their historical maps as their main evidence. (3) Obviously the
situation is not getting any better. Despite the Philippines' overwhelming stand on the
dispute, China still has the upper hand (Holmes). To illustrate, even if the Philippines
wins the tribunal, China can simply ignore the results since the UNCLOS has no
power to enforce the ruling (Holmes). Of course, the United States is just around the
corner in the eyes of many Filipinos; however, their involvement may only aggravate
the situation as more and more officials turn to militaristic approach. However, the
officials of both countries must not choose the violent route as this would prove
counterproductive. A peaceful outcome must still be the ultimate goal for both
Philippines and China because the last thing this world needs is another bloody
conflict (4) [ CITATION Nic15 \l 1033 ]

The West Philippine Sea Arbitration

The South China Sea is a semi-enclosed sea in the western Pacific Ocean,
spanning an area of almost 3.5 million square kilometers. The South China Sea lies
to the south of China; to the west of the Philippines; to the east of Viet Nam; and to
the north of Malaysia, Brunei, Singapore, and Indonesia. The South China Sea is a
crucial shipping lane, a rich fishing ground, home to a highly biodiverse coral reef
ecosystem, and believed to hold substantial oil and gas resources. The southern
portion of the South China Sea is also the location of the Spratly Islands, a
constellation of small islands and coral reefs, existing just above or below water, that
comprise the peaks of undersea mountains rising from the deep ocean floor. Long
known principally as a hazard to navigation and identified on nautical charts as the
“dangerous ground”, the Spratly Islands are the site of longstanding territorial
disputes among some of the littoral States of the South China Sea. (1) The basis for
this arbitration is the 1982 United Nations Convention on the Law of the Sea (the
“Convention” or “UNCLOS”). 1 Both the Philippines and China are parties to the
Convention, the Philippines having ratified it on 8 May 1984, and China on 7 June
1996. The Convention was adopted as a “constitution for the oceans,” in order to
“settle all issues relating to the law of the sea,” and has been ratified by 168 parties.
The Convention addresses a wide range of issues and includes as an integral part a
system for the peaceful settlement of disputes. This system is set out in Part XV of
the Convention, which provides for a variety of dispute settlement procedures,
including compulsory arbitration in accordance with a procedure contained in Annex
VII to the Convention. It was pursuant to Part XV of, and Annex VII to, the
Convention that the Philippines commenced this arbitration against China on 22
January 2013. (2)
The disputes that the Philippines has placed before the Tribunal fall broadly
within four categories. First, the Philippines has asked the Tribunal to resolve a
dispute between the Parties concerning the source of maritime rights and
entitlements in the South China Sea. Specifically, the Philippines seeks a declaration
from the Tribunal that China’s rights and entitlements in the South China Sea must
be based on the Convention and not on any claim to historic rights. In this respect,
the Philippines seeks a declaration that China’s claim to rights within the ‘nine-dash
line’ marked on Chinese maps are without lawful effect to the extent that they exceed
the entitlements that China would be permitted by the Convention. (3) Second, the
Philippines has asked the Tribunal to resolve a dispute between the Parties
concerning the entitlements to maritime zones that would be generated under the
Convention by Scarborough Shoal and certain maritime features in the Spratly
Islands that are claimed by both the Philippines and China. The Convention provides
that submerged banks and low-tide elevations are incapable on their own of
generating any entitlements to maritime areas and that “rocks which cannot sustain
human habitation or economic life of their own” do not generate an entitlement to an
exclusive economic zone of 200 nautical miles or to a continental shelf. The
Philippines seeks a declaration that all of the features claimed by China in the
Spratly Islands, as well as Scarborough Shoal, fall within one or the other of these
categories and that The South China Sea Arbitration Award of 12 July 2016 3 none
of these features generates an entitlement to an exclusive economic zone or to a
continental shelf. (4) Third, the Philippines has asked the Tribunal to resolve a series
of disputes between the Parties concerning the lawfulness of China’s actions in the
South China Sea. The Philippines seeks declarations that China has violated the
Convention by: (a) interfering with the exercise of the Philippines’ rights under the
Convention, including with respect to fishing, oil exploration, navigation, and the
construction of artificial islands and installations; (b) failing to protect and preserve
the marine environment by tolerating and actively supporting Chinese fishermen in
the harvesting of endangered species and the use of harmful fishing methods that
damage the fragile coral reef ecosystem in the South China Sea; and (c) inflicting
severe harm on the marine environment by constructing artificial islands and
engaging in extensive land reclamation at seven reefs in the Spratly Islands. (5)
Fourth, the Philippines has asked the Tribunal to find that China has aggravated and
extended the disputes between the Parties during the course of this arbitration by
restricting access to a detachment of Philippine marines stationed at Second
Thomas Shoal and by engaging in the large-scale construction of artificial islands
and land reclamation at seven reefs in the Spratly Islands. (6) [ CITATION ANA16 \l 1033 ]

Troubled Maritime Institutions in the West Philippine Sea – Implications for

Philippine National Security
The South China Sea issue is one of the many concerns that challenges
the Philippines’ commitment to international law and regional stability. Various
measures were embarked by different administrations of the Philippine
government, fundamentally inclined to the principle of its foreign policy that
ensures the integrity of its national territory and sovereignty. However, initiatives
were deemed ineffective at the level of implementation as each administration has
a different approach in dealing with the South China sea and in general, with
China [ CITATION Rhi19 \l 1033 ]. The dispute within South China Sea is arguably an
intractable issue, having developed for a considerable length of time, that shows a
security risk to the region but for which no peaceful settlement is in sight. At the point
when the issue initially arose, nobody could predict the direction it would take. In
present time, the fact that the tensions escalate every now and then to a level that
may lead to military tensions and conflicts, reflects the complexity of the issue and
the strength of the responsibilities and commitments of the member states to ensure
their national interests. (1) In 2014, as shown by satellite photos, Chinese vessels
dredged sand to build the submerged Mischief Reef into an island. Former US
President Barack Obama visited Manila to sign the 10-year US-PH Enhanced
Defense Co-operation Agreement. China also moved an oil rig owned by the China
National Petroleum Corp. close to Paracel Islands, prompting anti-Chinese protests
to erupt in Vietnam that would harm businesses with ties to China. Vietnamese boats
that were sent to the area were fended off by the Chinese ships, and in July, at last,
China removed the rig from the area. Also, in that year, the US and Philippines
conducted a joint military exercise near Scarborough Shoal. (2) China has claimed
that for the last 2000 years, Paracel and Spratlys islands and Scarborough shoal are
both integral part of the Chinese territory as it is reconfirmed by their 1947 map
which is mostly known as the map of the nine-dash line, enclosing an area covering
90% of the South China Sea. China maintained ambiguity to claim full sovereignty,
making it more difficult for other parties to pursue their claims. As an example, it has
considered the arbitration started by the Philippines as “unjust and unlawful” and
declared that the tribunal ruling is “null and void and has no binding force” over the
Chinese islands and reefs, hence UNCLOS should not apply. China did not take part
of the international arbitration but only by states that are directly concerned. It has
conducted joint development projects over some of the disputed islands in South
China Sea and has strict adherence to Declaration on Conduct of Parties in the
South China Sea wherein parties agree to seek agreement on a Code of Conduct. (3)
[ CITATION Che18 \l 1033 ]
Philippine’s Relationship between China and other neighboring Countries

When President Duterte became President, the Philippine-China relation

improved. According to Foreign Minister Wang Yi in one of the press meeting, since
President Duterte came into office, he appropriately handled the South China Sea
issue and actively improved the relations with China. [ CITATION Las19 \l 1033 ] China
and relevant ASEAN countries are in close communication on the approach to
properly handle the South China Sea issue. Positive progress has been achieved in
maritime issue consultations and mutually beneficial cooperation. So long as all
parties earnestly implement relevant consensus, adhere to consultations and
negotiations, promote practical maritime cooperation and joint development, the
South China Sea will become a sea of peace, friendship and cooperation. [ CITATION
Zha14 \l 1033 ] It is being involved in a war that we do not seek and do not want. The
Philippines is not in a conflict with anyone and will not be at war with anyone in the
future. But the United States, with the increased and frequent passage of its naval
vessels in the West Philippine Sea, is more likely to be involved in a shooting war. In
such a case and on the basis of the MDT, the Philippines will be automatically
involved [ CITATION Bre20 \l 1033 ]. China and the Philippines have been dedicated to
managing differences through friendly dialogues and consultations. The two
countries have established mechanisms such as Bilateral Consultation Mechanism
(BCM) to exchange views, enhance mutual trust and explore practical cooperation.
With joint efforts of China and ASEAN countries including the Philippines, the
consultation of the Code of Conduct in the South China Sea (COC) is proceeding
smoothly and effectively. As ships and planes carrying critical medical supplies
sailing and flying over, the South China Sea is turning out to be a sea of peace,
friendship and cooperation [ CITATION Emb211 \l 1033 ].

            Conclusions

In this modern-day battle, the best and the brightest legal warriors in our
country today must standup and fight to free our territory from foreign
encroachment. We are in a battle to defend our sovereign rights in our territory
which is the West Philippine Sea. It is very challenging to defend and preserve our
rights in our Exclusive Economic Zone (EEZ) in the West Philippine Sea to those
who claiming that they own our territory. Because of having a larger maritime area
and rich in natural resources like oil and fish there are many neighboring countries
of the Philippines who are very interested and claiming the territory. China has
never accepted any compulsory procedures of the Convention with regard to the
Philippines' claims for arbitration. China always maintains that the parties concerned
shall seek proper ways and means of settlement through consultations and
negotiations on the basis of respect for historical facts and international law. Since
conflicts over sovereignty in the South China Sea involve the overall stability of the
region and may have an impact on future relations with China, assuring security in
the sea is vital. A stable and peaceful South China Sea will depend on whether
China maintains a moderate approach. The arbitration caused tensions between the
Philippines and China over their maritime disputes in the South China Sea. China
has violated the Philippines' EEZ rights under UNCLOS through such alleged actions
as harassing and detaining Philippine fishermen and energy exploration vessels and
also preservation of the marine environment. The Philippines believes that the rule of
law prescribes a just and peaceful means of resolving differences, which is why the
Philippines will fully respect the Tribunal's Award as an affirmation of the UNCLOS
and hopes that members of the international community and Parties to the
Convention will do the same.
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